It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation. Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.
The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs. Nevertheless, originalism has achieved a real rhetorical dominance. But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap.
In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. Missouri has a state constitutional provision forbidding the disbursement of public money to any church. Except for church ownership, the playground would have qualified for participation in the program. The church sued over the exclusion on the ground that its right to free exercise of religion had been infringed.
The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome.
But, from the point of view of originalism, the decision was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.
Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.
That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. The fact that Justice Neil Gorsuch joined this antihistorical decision just a few weeks after endorsing originalism at his confirmation hearing, shows how obviously appropriate the living constitution is.
The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory.
The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. This is clear in the pronouncements of leading originalists like Randy Barnett of Georgetown Law School, the mastermind of the Obamacare judicial challenge, and a supporter of what is called the pre-New Deal court. Since powerful economic interests in this country could never convince the American people to surrender the power of the federal government to deal with national problems, originalism must be relied on to do this in the courts, under the misleading rubric that judges enforcing history are doing so in a value neutral way.
Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.
As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.
Bruce Ledewitz is a professor of law at Duquesne University School of Law. email@example.com